McWhinne v. Martin

Taylor, J. The contention of the'learned counsel for the appellant is that upon the whole evidence there was no binding contract of sale made by the Blossoms to the said plaintiff before' and at the time the defendant Martin purchased said lands from them, and that he is not, therefore, bound in equity to convey said lands to the said plaintiff on the payment of the balance due on his alleged contract [195] with, said Blossom, viz., $400, as adjudged by the circuit court. The learned counsel for the respondent have made a very able argument upon tbe evidence to establish the proposition of law that there is evidence sufficient in the case to show that the said. Emery & Shults were agents of the Blossoms, with full power to make a binding written contract of sale of said lands, and especially to make such binding contract of sale at the price or prices fixed by the said W. L. Blossom. ~We think, after a careful consideration of the case and the findings of the court, that that question is not in the case to be determined on this appeal. The learned circuit judge has found as a fact that W. L. Blossom did not confer any such power upon the said Emery & Shults; that they were his agents for the purpose of negotiating as to a sale of the said lands, authorized to get offers for said lands and report the same to said Blossom; and he also finds that the written contract, made June 8, 1888, neither added anything to, nor took anything away from, the binding force of the contract which the learned judge finds was made by the other evidence in the case. As there were no exceptions taken to these findings by the plaintiff, they are conclusive upon him upon this appeal. The learned circuit judge based his judgment upon the ground that the evidence established a contract for the sale of said lands to the plaintiff, irrespective of the written contract made June 8, 1888, and we think we must either affirm or reverse the judgment upon that view of the case. After a careful consideration of the evidence in the case, we conclude that the findings of the learned circuit judge are sustained by the law and the facts. Ye think it could not be successfully controverted that if ~W. L. Blossom, the acknowledged agent of the Blossoms, had personally made the same contract with the plaintiff which the said Emery & Shults made with him, he would have been bound in equity to make a conveyance of said lands to said plaint [196] iff. This court, as well as nearly all other courts, has held that equity will enforce a verbal contract for the sale of real estate when there has been a part performance of such contract on the part of the vendee. And our statute, after declaring the nullity of such verbal contracts, expressly provides that nothing in the statute shall be construed to abridge the powers of courts to compel the spécific performance of agreements in case of part performance of such agreements. See 1 S. & B. Ann. Stats, sec. 2305. What is such a part performance of a verbal contract as will take it out of the statute and will justify a court of equity in decreeing a specific' performance of such contract, has been frequently considered by this court, and it is held that the payment of any considerable part of the purchase money, and entering into the possession of the purchased premises and making improvements thereon, are sufficient to take the case out of the statute and justify the enforcement of the contract. Bowen v. Warner, 1 Pin. 600; Blanchard v. McDougall, 6 Wis. 161; District Bio. 3 v. Macloon, 4 Wis. 79; Fisher v. Moolick, 13 Wis. 321; Ingles v. Patterson, 36 Wis. 373; Smith v. Finch, 8 Wis. 245; Cameron v. Austin, 65 Wis. 652; Seaman v. Aschermann, 51 Wis. 678, 682. We think the evidence in this case clearly brings the plaintiff within the rule laid down in the above-cited cases, and the only other question in the case is whether W. L. Blossom, the acknowledged agent of the owners of said lands, should be held bound by the contract made by Emery & Shults with the plaintiff. Admitting, as the court finds, that Emery & Shults had originally no authority to bind Blossom by a contract to sell said lands to the plaintiff, has Blossom so conducted himself in regard to the contract made by Emery & Shults with the plaintiff as to estop him from now repudiating such contract? In other words, has he ratified said contract and made it his own? In determining this question, [197] we are bound to give weight to the fact that the said Emery & Shults were not entire strangers in their relations to said Blossom, or in their relations to the lands in question. The proofs show that Blossom had employed them to procure purchasers for said lands, and this fact was made known to the public generally. What the extent of their authority was, was not definitely stated or known. The plaintiff dealt with these agents, supposing they had authority to sell said lands to him. At most, there was an excess of authority on the part of the agents in making the contract in question. Under such circumstances, we think the law is clear that when the person for whom such agents have undertaken to act is fully notified of what they have done, it becomes the duty of the principal either to affirm or dis-affirm the act of the supposed agent within a reasonable time after such notice, or he is bound by such act. In the case at bar the evidence is clear that Blossom was notified at least two months before he sold the lands to the said Martin of the contract made by Emery & Shults with the plaintiff, and that plaintiff had taken possession of the property under such contract, and that he claimed the right to enforce such contract against the Blossoms, and that after the receipt of this notice Blossom did not in any way notify said plaintiff that he would not perform the same, and afterwards conveyed the lands to the said Martín without any notice to the plaintiff that he repudiated the contract made with the plaintiff. Under the authorities, we think Blossom is estopped now from denying the authority of the said Emery & Shults to make said contract, and has bound himself to its performance to the same extent that he would have been bound had he made such verbal contract with the plaintiff in person. The following cases in this court fully sustain the conclusion we have arrived at on this point: Ladd v. Hildebrant, 27 Wis. 135; Saveland v. Green, 40 Wis. 431, 438; KereTiemal v. Doty, 31 Wis. 493; Kadfield [198] v. Skelton, 69 Wis. 460, 463, 464. Upon this point, see, also, Foster v. Rockwell, 104 Mass. 167, and Wood v. Williams, 26 Ill. 447, 79 Ann. Dec. 385, and other cases cited in the brief of the learned counsel for the respondent. It is urged by the learned counsel for the appellant that the circuit court erred in allowing the plaintiff to amend Ms complaint so as to make it conform to the evidence. We think this is a matter resting entirely in the discretion of the trial court, and, unless there is a clear abuse of such discretion, this court will not interfere. In this case it is not very clear that the evidence introduced on the trial was not properly admissible under the original complaint. The other objection made, that W. L. Blossom could not delegate his power as agent of his co-tenants to the said Emery & Shults, is not in the case in the view taken of it by the trial court. The trial court enforced the contract against the grantee of the Blossoms, on the ground that Blossom, their authorized agent, had made a valid contract to convey the same to the plaintiff; and, the proof showing clearly that their grantee, Ma/rtin, took the conveyance from the Blossoms with full knowledge of the fact that such previous contract of sale had been made, he was also bound by such contract as between himself and the plaintiff. By the Court. — The judgment of the circuit court is affirmed.